Planning Bill

My Lords, my noble friend is right that important issues have been raised by the noble Baroness. I am grateful for the opportunity to respond to them. She focused on the technical aspects of what an NPS is and does, which are set out in Clause 5. Amendments Nos. 18 and 19, together with consequential Amendments Nos. 30, 124 and 125, probe how far an NPS can go in identifying locations as suitable for development by removing the provision that an NPS may identify locations as suitable in the first place. The noble Baroness made it clear that she believes that the Secretary of State should only be able to identify locations that are potentially suitable, making clear that the IPC will therefore have genuine discretion for an independent decision. I take the point she made. In Amendment No. 24 she wants to ensure that identifying a location as potentially suitable should not bring with it a conclusive decision about its suitability for a particular project. I will come to her Amendments Nos. 20, 22 and 26 as I go through my speaking note, because I think that they are linked. Perhaps I may deal with the key issue of ““potentially suitable”” as opposed to ““suitable””—whether we are dealing with semantics or a serious concept. The noble Baroness has argued that, in logic, all locations identified in an NPS can only ever be potentially suitable, because the IPC will still need to consider local impact and the other matters in subsections (4) to (8) of Clause 102. If they outweigh the benefits, the application could be refused. I do not think that I made a very good fist of explaining that in Committee, and as the noble Baroness read it back to me I became even more convinced of that, so let me take another stab at it. In the first place, although Clause 5 permits an NPS to identify a location as suitable, it certainly does not mean that the IPC will have no discretion to refuse an application for development at that location. As I said, the IPC will need to consider the issues raised as a result of the tests in Clause 102(4) to (8). However, as the noble Baroness will understand, Clause 5 relates solely to the Secretary of State’s view expressed in terms of policy on an NPS; it does not relate to any decision of the IPC. Clause 5 permits the Secretary of State to come to a clear view about locations that in his or her view are suitable, but the final decision about whether development can go ahead in a location rests with the IPC. That is governed by Clause 102, not Clause 5. Let me be clearer than I think I was in Committee about the definition. There is a defensible difference between policy that identifies a location as suitable and that which identifies a location as potentially suitable. The former is, clearly, more certain; the latter suggests that certain conditions still need to be satisfied or obstacles overcome before a location becomes suitable. Perhaps I can explain this in the context of the IPC’s decision-making framework. If an NPS says that, in the Secretary of State's view, a location is suitable for a particular type of development, the IPC will be required to decide an application in accordance with the NPS unless one of the exceptions set out in Clause 102 (4) to (8) applies. The starting point for the IPC in that case would be that the Secretary of State considers the location to be suitable, and weighed against that would be the issues raised by Clause 102(4) to (8). Those issues could include whether special consideration of alternative locations was required if it was a habitat site, how far alternative locations had been considered by the Secretary of State in coming to the view, and whether there were local adverse impacts that the Secretary of State had not taken into account in coming to that view. However, if an NPS says that a site is potentially suitable, the starting point for the IPC would be that there are matters that must be addressed before the site can be considered suitable. The IPC would still need to come to a view on those matters and would then need to weigh the complete package against the issues raised by Clause 102(4) to (8). I think that that is a solid distinction. The amendments would restrict the Secretary of State’s ability to identify suitable sites for NSIPs in a national policy statement and, therefore, his or her ability to take responsibility and accountability for that policy. The noble Baroness will understand that I cannot accept that amendment. Amendment No. 24 goes to the heart of the matter. I should be absolutely clear that if an NPS were to identify a location as suitable or potentially suitable for development, that would in no way predetermine the outcome of a decision whether to grant development consent. The IPC will always be required to consider any application in the context of the provisions for the examination of applications set out in Clause 102, and will be able to refuse consent in the circumstances set out in the clause. However, the noble Baroness has made an important point, which I accept, about clarity and certainty. I understand the concerns, and will take the matter away and consider it further to determine whether we can do something to make this clearer. Clause 5 may not be the appropriate place for clarification, because, as I have said, it is important that we maintain the distinction between policy-making and decision-making. We may be able to clarify this to her satisfaction in the decision test. If she withdraws the amendment, I will give the matter more thought. I will not be able to give the noble Baroness, Lady Hamwee, as much satisfaction on Amendment No. 20, which deals with statutory undertakers. In Committee, noble Lords argued that NPSs should focus on policy issues alone and should not be distracted by the detail of who should carry out development. I went into this in some detail in my letter, and it is hard for me to improve on that. We may simply have to agree to disagree. There is a pressing reason why this provision is necessary. Clause 5(5)(e) should be read alongside Clause 172, which defines appropriate authority, as she knows, for the purposes of Chapter 2, Part VI, of the Town and Country Planning Act. At the risk of déjà vu, I must repeat that removing the provision to identify statutory undertakers would result in the Secretary of State, rather than the promoter, becoming liable under the blight provisions in Clause 172. The problem is that this could greatly restrict the content of an NPS, as identifying sites as potentially suitable for development would render the Secretary of State liable for compensation for any blight caused. This would not be appropriate, because it is the promoter who will ultimately benefit from any such development, so they, not the taxpayer, should bear the burden of compensation. Amendment No. 26 would require the NPS to set out how the policy in it relates to the provisions of other policy statements. Noble Lords seek to ensure that NPSs are consistent with one another and have proper regard for the policies that each sets out. Noble Lords also seek to ensure that they reflect the reality of the rest of the planning system and are consistent with it. I certainly agree. Indeed, the Bill is a huge step forward in this regard. For the first time, nationally significant infrastructure will be planned for and decided according to a single consent process, rather than through the minefield of consent regimes that we have now. However, it is neither appropriate nor practical to require NPSs to set out how each relates to every other NPS. It is clear that in some cases NPSs will have close links with other NPSs. I recall our debate in Committee on the amendments tabled by the noble Lord, Lord Berkeley—who unfortunately is not in his place at the moment—on the transport NPSs. In other cases, however, there will be little common ground. On the other hand, NPSs will be linked to a wide range of policies outside the new regime, and those relationships will often be critical. NPSs will have to justify their policy within the wider orbit of relevant policies on transport, energy, the environment and planning, with the objective of contributing to the achievement of sustainable development. NPSs will need to explain and give evidence of those relationships. However, they will be different in each situation and will therefore be complex, so it would not be practical to place a requirement in the Bill that would constrain them artificially. Finally, Amendment No. 22 would require each NPS to set out the extent to which it supersedes policy in a planning policy statement or any other statement of government policy. I sympathise with the purpose of the amendment, but if an NPS were to render policy out of date, this should be clear. However, NPSs will usually be narrowly focused. They will set out policy only on certain types of infrastructure above the threshold. The main thrust of this policy will apply above the thresholds set out in the Bill, although obviously as statements of government policy they will influence the TCP system to a degree. Planning policy statements and White Papers are fundamentally different as they are drawn up for different purposes. For the IPC, the NPS is the primary policy framework. When other planning policy statements and White Papers with their own particular purposes and functions are out of date, they are either revised or replaced with another document with a similar purpose. The problem with the amendment is that there is a blurring of the line between different types of policy statement, which is not very helpful. Under the TCP system, the decision must be made in accordance with the statutory development plan unless material considerations indicate otherwise. The point raised by the noble Baroness is rather complex and I have replied in a rather elaborate way. If she will allow, I should like to write to her on this point, which is important and should be placed on the record.